CHAP. IV. the actual conditions of matter, or the postulates of political economy to the dealings of ordinary life 1.

Justifica

tion of the theory.

These remarks are no less valuable than they are interesting. When legal phenomena are explained by the action of an absolute political sovereign, the student of Jurisprudence should always remember, and may no doubt be in danger of forgetting, that the explanation, though true as a general statement, necessarily leaves out of account many other characteristics of such phenomena.

Sir Henry Maine has done good service by pointing out the mistake of supposing that the obligation of law rests. everywhere, and at all times, as immediately and obviously upon a sovereign political authority as it does in England at the present day. In guarding against a crude application of the doctrine of sovereignty, this great jurist has however perhaps hardly done justice to its essential truth. The reply which we would venture to make to his remarks upon this point would be to the following effect.

With reference to the Western nations, we would submit that the dependence of law upon sovereignty was as obvious in Attica and Lacedaemon as it ever was under the Roman Empire. A law as carried by Pericles, or as imagined by Plato, would conform to Austin's definition as completely as would a constitution of Marcus Aurelius.

With reference to the relation of a great Oriental taxgathering empire to the village customs of its subjects, or to the more distinctly formulated laws of a conquered province, it is necessary to draw a distinction. Disobedience to the village custom or the provincial law may either be forcibly repressed, or it may be acquiesced in, by the local authority. If it be habitually repressed by such local force as may be necessary, it follows that the local force must, if only for the preservation of the peace, be supported, in the last resort, by the whole strength of the empire. In

1 Early History of Institutions, Lect. xiii.

this case the humblest village custom is a law which complies with the requirement of being enforced by the sovereign. If, on the other hand, disobedience be habitually acquiesced in, the rules which may thus be broken with impunity are no laws; and, so far as such rules are concerned, the tax-gathering empire is lawless, its organisation consisting merely of an arbitrary force, acting upon a subject mass which is but imperfectly bound together by a network of religious and moral scruples.

It is convenient to recognise as laws only such rules as are enforced by a sovereign political authority, although there are states of society in which it is difficult to ascertain as a fact what rules answer to this description.

CHAP. IV.

i

CHAPTER V.

THE SOURCES OF LAW.

Ambiguity

of the term

THE obscurity which has involved the whole subject of the source. origin of law, and the mutual relations of customary, judgemade, and statute law, is largely due to the ambiguous uses of the term 'Source.' These uses are threefold.

Its three

senses.

Sometimes the word is employed to denote the quarter whence we obtain our knowledge of the law, e.g. whether from the Statute-book, the Reports, or esteemed Treatises.

Sometimes to denote the mode in which, or the persons through whom, those rules have been formulated which have acquired the force of law.

Sometimes to denote the authority which gives them that

force.

The last two uses are those which are most frequently confused together. Until the State is formed there can be no law, in the strict sense of the term. There may be, and doubtless always have been, morality and customary rules of conduct. After the formation of the State, such rules as receive its sanction and support, whether promulgated for the first time by the governing body, or already in operation among the people, become, in the proper sense of the term, 'laws.'

source of

The sole source of laws, in the sense of that which im- CHAP. V. presses upon them their legal character, is their recognition But one by the State, which may be given either expressly, through legal the legislature or the courts, or tacitly, by allowance, followed, in the last resort, by enforcement, as we have seen in the preceding chapter.

character.

sources of

The sources of laws, in the sense of the causes to which Several they owe their existence as rules, are, however, several 1. existence These may be distinguished as usage; religion; adjudica- as rules. tion; scientific discussion; equity; legislation. Some confusion has arisen from not observing that laws occasionally owe their existence as rules and their validity as laws to one and the same authority.

I. Usage, or rather the spontaneous evolution by the Custom. popular mind of rules the existence and general acceptance of which is proved by their customary observance, is no doubt the oldest form of law-making. It marks the transition between morality and law. Morality plus a Stateorganisation enforcing the observance of certain parts of it is customary law.

Two questions are much debated with reference to usage. First, as to the mode of its growth as usage. Secondly, as to its transformation into law.

Its characteristic is that it is a long and generally observed Its growth. course of conduct. No one was ever consciously present at the commencement of such a course of conduct, but we can hardly doubt that it originated generally in the conscious

1 Cf. Cic. Top. 5; Dig. i. 1. 7; Gai. i. 2. The roots' enumerated in the Institutes of Manu (ii. 6.) are four: Revelation, or the uttered thoughts of inspired seers; the institutes of revered sages, handed down by word of mouth from generation to generation; the approved and immemorial usages of the people; and that which satisfies our sense of equity, and is acceptable to reason. Tagore Lectures, 1880, p. 137. In Doctor and Student, i. 4, it is said that the law of England is grounded on six principal grounds: first, it is grounded on the law of reason; secondly, on the law of God; thirdly, on divers general customs of the realm; fourthly, on divers principles that be called maxims; fifthly, on divers particular customs; sixthly, on divers statutes made in Parliament.'

E

CHAP. V. choice of the more convenient of two acts, though sometimes doubtless in the accidental adoption of one of two indifferent alternatives; the choice in either case having been either deliberately or accidentally repeated till it ripened into habit.

The best illustration of the formation of such habitual courses of action is the mode in which a path is formed across a common. One man crosses the common, in the direction which is suggested either by the purpose he has in view, or by mere accident. If others follow in the same track, which they are likely to do after it has once been trodden, a path is made.

Before a custom is formed there is no juristic reason for its taking one direction rather than another, though doubtless there was some ground of expediency, of religious scruple, or of accidental suggestion. A habitual course of action once formed gathers strength and sanctity every year. It is a course of action which every one is accustomed to see followed, it is generally believed to be salutary, and any deviation from it is felt to be abnormal, immoral. It has never been enjoined by the organised authority of the State, but it has been unquestioningly obeyed by the individuals of which the State is composed. There can in fact be no doubt that customary rules existed among peoples long before nations or states had come into being. At first no distinction was made between such of these rules as relate to individual character and such as concern society. Morality and customary rules were the same thing, but the distinction between the two was more and more sharply drawn as time went on.

Its legal After the organisation of States, many of the customary authority rules of society still continued to be recognised, and acquired a further sanction. They had previously been enforced only by popular opinion, or by the licensed revenge of injured parties. They were now enforced by the political authority. They became law; and were doubtless for the time the only laws known. They were the unwritten, but well known, opinions of the community as to social right and wrong.